The Human Rights Act is Under Renewed Attack

Leonard Lewis

The threats to the Human Rights Act (HRA) have resurfaced. Last week, the government, in response to a letter from the House of Lords EU Justice Sub-Committee on the status of citizens’ rights after Brexit, failed to give assurances that it will not repeal or replace the Human Rights Act once the process of Brexit has concluded. Just yesterday, more unfortunate and misleading coverage was published in the Express newspaper about the place of the HRA and the European Convention on Human Rights (ECHR).

It was originally reported last week that the EU Justice Sub-Committee wrote to the Lord Chancellor and Secretary of State for Justice, David Gauke, in December 2018 seeking an explanation for the change to the government’s pledge to the ECHR. When the summary draft of the Political Declaration on the UK’s relationship with the EU was published on 14 November 2018, it indicated a “reaffirmation of the United Kingdom's commitment to the European Convention on Human Rights (ECHR).” However, the final political declaration appeared to change its previous pledge to commit to the ECHR, instead merely agreeing “to respect the framework” of the ECHR.

Edward Argar MP, Undersecretary of State at the Ministry of Justice, replied to the question of whether the government intended to break the formal link between the UK and the European Court of Human Rights (ECtHR). He stated that while the change in wording in the final declaration did not signal a “change in the UK’s position on the ECHR”, the government would “wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape”.

BIHR is deeply concerned that the government has refused to confirm its commitment to the UK’s central human rights legislation.

For nearly 20 years, the HRA has been the fundamental piece of law which has enabled people in the UK to access local courts and tribunals to assert their Convention rights, preventing them from undertaking the time-consuming and costly process of going directly to the ECtHR for justice. Yesterday’s Express article included quotes from former UKIP MP, Douglas Carswell, in which he asserted that the ECHR facilitates judicial activism. While the introduction of the HRA did indeed increase the powers of UK courts to protect human rights and scrutinise policies accordingly, the central role of courts has been one of interpreting the law rather than making the law. It has always been the case under the HRA that only Parliament can make, change or remove legislation from our law books.

Moreover (and less talked about), the HRA has empowered citizens to ensure that they are treated with greater dignity and respect in their everyday lives. It has led to vital improvements in laws and policies that have improved the lives of a wide range of people in a wide range of situations – including health and social care, education and housing. Our work in communities across the UK demonstrates the real life value the HRA brings to people everyday, changing individual lives, like 18 year old Nina, who was so distressed about being placed 100s of miles from home for mental health treatment that she began self-harming. Using the HRA in discussions with healthcare staff got Nina moved much nearer to home. Similarly, a Housing Association saw a significant reduction in violent incidents once they started using the HRA in their decision-making and day-to-day work.

The government’s position on our domestic human rights is even more concerning given the exclusion of the EU Charter of Fundamental Rights from the EU Withdrawal Act. This will deprive citizens in the UK of rights that are not explicitly or comprehensively available elsewhere in UK law, such as a free-standing right to dignity. Organisations across the UK have raised their concerns about the negative impact of the exclusion of the Charter, both in principle and in practice.

At a time of great political uncertainty, we need less posturing about our human rights laws and a strong commitment to retaining the HRA. Rather than the political football it is often reduced to, the reality that we see everyday is that the HRA plays an important role in effectively safeguarding the rights of all people here at home. As a modern democratic society, we must ensure that our human rights law remains on the statute books, and continues to make the lives of all people in the UK fairer and better.

Human Rights through the Ages premiered at our Human Rights Tour 2012. It highlights a handful of historical events that have contributed to our modern understanding of human rights, with a bit of tongue in cheek media commentary thrown in. It has proved extremely popular, have a watch and see what you think!

Co-produced with advocacy groups this guide shows how the rights and duties in the Human Rights Act can help strengthen support for people with mental health problems. It uses handy tables, flowcharts, case studies, and worked through examples.